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As part of its mission to improve access to information, open government, and transparency the Right to Know Coalition is calling on the European Commission President, the European Parliament, and the European Council to delete a censorship filter proposal (the “Proposal”) found in Article 13 of the proposed Directive on copyright in the Digital Single Market [2016/0280(COD)]. In so doing, it is joining over 50 NGOs from around the world that advocate for human rights and media freedom.

In addition to the multitude of NGOs that have expressed concerns about the Proposal, seven EU Member States, namely Hungary, Belgium, the Netherlands, Finland, Ireland, Germany and the Czech Republic, as well as a number of respected academics have expressed their concerns about the proposed filter.
Human rights and media freedom advocates agree that the proposed filter will have a devastating impact on EU citizens’ rights in the following ways:

1. Violate freedom of expression guaranteed in Article 11 of the Charter of Fundamental Rights;
2. Provoke legal uncertainty to the point that online platforms will have no other option than to monitor, filter, and ultimately block EU citizens’ communications; and
3. Impose obligations on online platforms that would be impossible to respect without imposing excessive restrictions on EU citizens’ fundamental rights.

Concerns about legality and efficacy

Article 13 would force website providers to actively monitor their users‘ content, which contradicts the ‘no general obligation to monitor‘ rules in the Electronic Commerce Directive . Moreover, the requirement to install a system for filtering electronic communications has been rejected by the European Court of Justice twice (see Scarlet Extended (C 70/10) and Netlog/Sabam (C 360/10)). A law that requires website providers to install a filtering system would almost certainly be struck down as well. It is further likely that the law, if implemented, will also be rejected by national level constitutional courts in the EU, causing yet more inconsistency across the bloc.

Legal concerns aside, the Proposal’s efficacy and unintended consequences remain uncertain. Such a filter would require website providers to monitor all user uploads. It is unlikely that this monitoring can differentiate between copyright infringements and legitimate uses of content authorised by law. Consequently, the censorship filter proposal holds the potential to create not only a chilling effect on freedom of expression, but also may undermine innovation and competition. A corresponding decrease in available online platforms for users and providers alike will limit EU citizens’ constitutionally enshrined right to freedom of expression in online spaces.

The Right to Know Coalition joins colleagues around the world in calling on European lawmakers to reject mandatory the upload filters in Article 13.